Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

SCOTUS for law students: Free speech and religious freedom intersect in case of Utah crosses

Posted Mon, October 24th, 2011 11:13 am by Stephen Wermiel

Sometimes, it seems, a case may confound the Supreme Court: should it grant certiorari to hear oral argument and decide the question presented by the case, should it deny review even though the case presents important questions, should it rule summarily, without hearing oral arguments, or should it instead hold the case for a related one?

That may be what is happening with the petitions for certiorari in Utah Highway Patrol Association v. American Atheists (No. 10-1276) and Davenport v. American Atheists (No. 10-1297). As last week’s discussion on the Community – a forum where everyone, including law students, can join in the give and take about important Supreme Court topics – reflects, the petitions raise interesting and pressing questions about the separation of church and state and when expression may be considered government-sponsored.

According to the Supreme Court’s public online docket, the two petitions – which seek review of the same August 2010 ruling by the Tenth Circuit – have been on the list of cases to be considered at the Justices’ private Conference three times. Yet the Court has taken no action on the cases and has given no indication of what is holding up a decision on whether to hear them.

The issues in the two petitions are challenging and have divided the Court in other cases in the past. At issue in both cases is the display of twelve-foot-tall white crosses along public highways in Utah, erected by the private, non-profit Utah Highway Patrol Association to commemorate state troopers killed in the line of duty. Each cross displays the name, rank, and badge number of a fallen state trooper on the six-foot-long cross arm. Each cross also displays the official beehive symbol of the Utah Highway Patrol, as well as a photo and plaque commemorating the officer. The crosses – about thirteen in all – are paid for with private funds, but most sit on public property.

The display of the crosses was challenged by a Texas-based atheist organization, including several of its Utah members. They relied on the longstanding view that the Establishment Clause of the First Amendment requires separation of church and state in government action. The Supreme Court has held that this separation should be gauged using the three-part test that it created forty years ago in a case called Lemon v. Kurtzman. As currently formulated, the Lemon test requires the Court to consider whether a government action or policy has the purpose of endorsing religion, has a principal effect of endorsing religion, or involves excessive government entanglement with religion. If a law or policy fails any of the three prongs, it is an unconstitutional violation of the Establishment Clause. The Court has often divided over whether, using the Lemon test, the First Amendment should prohibit all or most connections between government and religion or whether it should instead prevent only the most direct involvement between church and state.

In the Utah case, a federal district court found no endorsement of religion and rejected the challenge, allowing the crosses to remain along the highways. But the Tenth Circuit ruled that the crosses could send the message to a “reasonable observer” that the state of Utah favors Christianity; this violates the Establishment Clause, the three-judge panel said, by endorsing one religion over others.

In December 2010, the full Tenth Circuit decided by a vote of five to four not to rehear the case en banc, but several members of the Court faulted the three-judge panel for mistakenly using a “reasonable observer” who is “increasingly hostile to religious symbols in the public sphere.”

The appeals present a number of questions that the Supreme Court may choose to tackle, falling at the intersection of the First Amendment’s free speech and freedom of religion provisions – a stretch of road that has not been entirely mapped out. The questions are challenging ones when the expression is initiated and funded by private groups, as with the display of crosses by the private Utah Highway Patrol Association, but takes place on public land and includes the official symbol of a state government agency, as the Utah crosses do.

When is the expression of ideas by private entities in public places considered government speech? The Supreme Court has said in recent years that when government is the speaker, the free speech clause gives substantial leeway to government to decide what to say and when and how. “Indeed, it is not easy to imagine how government could function if it lacked this freedom,” Justice Samuel Alito wrote for the Court in 2009 in Pleasant Grove City, Utah v. Summum. When speech is private, it may be regulated by local ordinances or by state and federal laws, and those laws must comport with First Amendment free speech standards. However, when it is the government speaking, the role of the free speech clause is much narrower.

The Summum decision addressed only the free speech issues implicated by Pleasant Grove’s decision to reject a private offer of a Summum religious monument for display in a public park that already displayed the Ten Commandments and other monuments. But that is only the beginning of the analysis. As Justice Scalia observed in a concurring opinion in Summum, “it is obvious . . . the case has been litigated in the shadow of the First Amendment’s Establishment Clause.” In the Utah cross case, the issue emerges from the shadows: government speech may have a wide berth under the free speech guarantee but may not violate the separate First Amendment guarantee that prohibits government establishment of religion.

So in case the paradox is not readily apparent, if the Utah crosses are government speech, they may pose no problem under the free speech clause but raise questions under the establishment clause. This was the view advanced by the Tenth Circuit. If the Utah crosses are private speech, however, they may be subject to reasonable government speech regulations by the state but probably pose no real problem under the Establishment Clause. This last point is so because the First Amendment, as with the other provisions of the Bill of Rights and the Fourteenth Amendment, applies only when there is state action – that is, when the dispute involves action by the government to restrict speech or support religion.

The Supreme Court must decide whether it even wants to sort out this set of issues, although some Justices have seemed eager in recent years for an opportunity to sort out the speech-religion connection. In addition to the Summum case two years ago, the Court has wrestled with public displays of the Ten Commandments, upholding one on the state capitol grounds in Texas in 2005 while at the same time invalidating another in a Kentucky courthouse. They have considered displays of Christmas crèches, Hanukah candles and more. And just a year ago, the Court decided a case that involved the display of a private cross on federal land in the Mojave National Preserve in California to honor World War I soldiers killed in action. The Court’s ruling in Salazar v. Buono did not directly decide the validity of the cross, considering instead a federal land swap that effectively placed the cross on private land.

In the Salazar case, Justice Anthony Kennedy set out a direct framework for the Utah cross appeal. While government may not endorse religion, he wrote, “[t]he goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.” But Justice Kennedy did not stop there. He added, “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of government support for sectarian beliefs.” While parts of Justice Kennedy’s opinion did not command support from a majority of the Court, there is little doubt from Salazar, Summum, and other rulings that a majority of the Court would welcome the chance to allow more room for religious symbols in public places without concern for violating the First Amendment.

Whether the Utah cross appeals become a vehicle for the Court to clarify when religious displays may be part of government expression will become apparent when the Justices finally decide what to do with the two petitions. Will they decide that the crosses are not government speech but private expression? Will they decide that the crosses are government speech but cannot reasonably be seen as endorsing religion? Will they decide that the crosses do send a message of government support for Christianity, as the Tenth Circuit ruled? Or will they decide that there may be other, better cases in which to clarify these issues? The next word will come from the Court.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]